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Thursday, July 11, 2013

As the saga of whether Edward Snowden will accept an offer of asylum in Latin America continues, his situation allows some comparison to the fascinating story of Michel Christopher Meili.

Who's Meili?

Is there an EFF sticker on that volume?
Photo by Gisela Blau

In brief, Meili was a 29-year old Swiss citizen and an employee of a private company with significant connections to his government - the Union Bank of Switzerland. In 1997 Meili was a security guard, who happened upon 2 carts full of Holocaust-era banking documents related to Jewish clients of UBS that were slated for destruction. Inspired by "Schindler's List," Meili removed several volumes of the documents from his employer's possession. Instead of going directly to the authorities, he instead disclosed the documents to outside sources.

As a result, not only did Meili lose his job, but he was also under investigation by Swiss authorities for violating Swiss law. Moreover, according to Meili's testimony in a U.S. Senate hearing (available here), after Swiss police took possession of the documents, they told Meili that the Swiss government was treating the documents as "classified," despite the fact that they were UBS documents, and that they "would never be seen by people 'outside Switzerland.'"

Finally, while Meili believed he was exposing an act of destruction that was, or should have been, illegal, the Swiss police told him that they had concluded that UBS had done nothing wrong.

Meili testified

One of the things that I have learned in these last few months is that there are certain powers in Switzerland that do not want to see the Swiss Banks and our government exposed for what they did during the Holocaust and that they will do anything - including destroying documents, restricting and controlling Police investigations, hiding/burying evidence and lying publicly.

The reason why Meili gave testimony to the U.S. Congress was that while he was temporarily in the United States, Sen. Alfonse D'Amato organized a Senate hearing about, and including, Meili. D'Amato expressly acknowledged that Meili "today is under investigation for violating Swiss bank secrecy laws for disclosing the records" and that he had also received threats against him in Switzerland by individuals opposed to his actions (no doubt in the same vein as disturbing statements about what should happen to Snowden in the comments section of many articles about him).

The Senate hearing was designed to assess what actions the United States could take to protect Meili. Congress determined that although Meili did "not meet the necessary criteria for permanent residency under any existing categories" under U.S. law, that Meili nevertheless deserved sanctuary in the United States. Therefore Congress passed a special law, Private Law 105-1 that granted Meili, his wife, and his children permanent residency in the United States "[n]otwithstanding any other provision of law."

The law specifically cites the fact that Meili was "interrogated by the local Swiss authorities who tried to intimidate him by threatening prosecution for his heroic actions." President Clinton signed the law on July 29, 1997. According to a spokesperson, President Clinton, after reviewing the case, decided that it was "appropriate" that Meili be given permanent residence in the United States.

The actions of the United States in the Meili affair could therefore provide a model for Venezuela, Nicaragua, or Bolivia in granting Snowden asylum. On the issue of whether Snowden would technically qualify as a refugee under international law, for example, see "Snowden's asylum case" by Jaya Ramji-Nogales here. Regardless of the merits of Snowden's case under current international or domestic law, however, one of those countries that have offered him asylum could simply follow the U.S. example and make Snowden's asylum a special case.

As to the more substantive similarities between the actions of Snowden and Meili, to be absolutely
clear, I am not drawing any comparison between the NSA surveillance
programs and the Holocaust. I am comparing, however, the decision to grant "asylum" in some form to a foreign citizen who was under active investigation for violating the laws of his country and violated his obligations to his employer in
order (1) to disclose ongoing NSA surveillance programs versus (2) to
disclose historical banking records that may have been relevant to individual ownership claims for
property plundered by the Nazis a half a century earlier. That
comparison can cut in many different ways depending upon one's
perspective (e.g., how one weighs the severity of the crime v. the importance of the disclosure) and the two cases are distinguishable in many ways (e.g., despite the investigation, Switzerland had not cancelled Meili's passport or sought extradition).

The point is that comparing Snowden with Meili is another illustration that the Snowden affair is clearly not as simple as upholding the "rule of law" as President Obama asserted. The most striking example of the contrast is in the statements of Sen. Charles Grassley who has stated about Snowden that "I believe that whatever the law requires, just like anybody that breaks the law, [Snowden] needs to be prosecuted" and that "I suppose it gets down to - did he break a law? - I think it's pretty obvious he did." The very same Sen. Grassley, during the 1997 Senate hearing on Christoph Meili, gave this rather remarkable statement which deserves reprinting:

The situation we have here with Mr. Meili, albeit everything that he has brought to our attention has worldwide implications, but a person like him acted out of bravery, or maybe the bravery comes after he has acted because he has had to withstand the mental torture of what has gone on since then. But it reminds me of a lot of things that happen in our own Government, and I realize his is a private sector situation, but I like to think that we keep our Federal Government honest when we have people in our Government who, when something is wrong, will be willing to come forward and say what is wrong.

We speak of these people in our Government as whistleblowers. Maybe, originally, that was to denigrate them, but as far as I am concerned the word "whistleblower" is a description of somebody who wants to seek the truth, who wants to make sure that all of the facts and circumstances are known so that a wrong can be corrected.

* * * *

Well there is a lesson to all of us in the Congress of the United States when we have an example like this before us that we should not be denegrating people who seek the truth. We should be helping them be protected, we should help them get their story out, and we should help them make sure that they are not harmed economically or physically, or even professionally, because of seeking the truth.

Now, I know in some instances not every whistleblower has a credible story, so you do have to be circumspect to the extent to which we investigate every complaint that comes to our attention. But it seems to me that we ought to be honoring people who seek the truth, as Mr. Meili has sought the truth, and to expose wrongdoing. That is my interest in this. Besides helping Mr. Meili, it is my interest in also making sure that we are very consistent in the Congress of the United States in encouraging whistleblowers to come forth with information when something is wrong, because we do not have the time in the Congress to know where every skeleton is buried in every closet.

Asylum, in a general sense, is inherently a check on sovereignty. And it must be couched in such terms. More than a mere preference, it is a statement that the oppressing state acted in an illegitimate manner toward its citizens asylum usa